Notes from OCBA Program

(Both judges previously worked as research attorneys on the Court
of Appeal, Fourth District, Division Three and now serve as Superior Court
judges. The Section’s program chair, Jimmy Azadian, moderated.)

Main points

The judges discussed preserving issues and the record for
appeal, including a warning on asking for “too much” when making evidentiary
objections and seeking rulings on them. The discussion then turned to
writing appellate briefs. The judges seem to love introductions – as long
as they are clear and tell the judges what the case is about, what
relief the party seeks, and why they are entitled to that relief. Passion
in briefs can be useful – in the right places. The statement of facts is
not a place for argument.

Much of the remaining discussion focused on statements of
decision. The judges tend to – but not always – write their own
statements of decision rather than have counsel write proposed ones. They
emphasized that attorneys should “follow the statute,” and that the statement
of decision is not a rehash of the entire trial; instead, it’s only about the
principal controverted issues, and what the court relied on. And, every
once in a (long) while, a judge might change the judgment during the process of
preparing a statement of decision, if they realize that their initial decision
was wrong.

Interesting tidbits

Neither judge tends to read briefs filed in an ongoing appeal,
but might do so after the an opinion is filed. And they do not file
briefs as a respondent in writ proceedings (although they noted that some
judges do).

The judges noted the Brown, Winfield requirement that a
trial court hold a hearing if it is considering changing an order in response
to a suggestive Palma notice (or an alternative writ) by the Court of
Appeal. The message seemed to be that judges might not be vested in their
original rulings, so the party who won the first time may have an uphill battle
trying to persuade a judge to uphold a ruling in the face of a suggestive Palma
notice.

The judges do not seem to believe the Court of
Appeal typically takes CCP 166.1 statements into consideration when deciding whether to issue
a writ.